The High Court clarifies the procedural rights of an appellant regarding disability pension claims, ensuring unprejudiced consideration by appellate authorities.

K. NATARAJAN .J This Writ Petition is filed by the petitioner for setting aside the order passed by the Armed Forces Tribunal, Regional Bench, Kochi, in Ext. P3, and for a declaration that the disability of the petitioner is attributable to or aggravated by military ser- vice, and for directing the respondents to issue a PPO sanction- ing the disability element of pension at 20% with effect from 01.05.2012.

2. We heard the arguments of the learned counsel for the petitioner and learned CGC.

3. We have perused the order passed by the Armed Forces Tribunal, particularly paragraphs 11 and 12 of the im- pugned order, the said paragraphs read as under:

4. The learned counsel for the petitioner contended that, though the petitioner was posted in various field areas and marginalized field areas, he was suffering from hypertension and hyperthyroidism for 13 years. He was discharged from ser- vice on 01.05.2012. He approached the authorities for granting disability pension, which was rejected, and he was directed to approach the appellate authority. Accordingly, he filed an ap- peal before the first appellate authority, which came to be re- jected, and subsequently he was also directed to approach the second appellate authority by filing a second appeal. However, the petitioner was not able to get a copy of the order passed in the first appeal. Therefore, the petitioner approached the Armed Forces Tribunal by challenging the order passed by the first ap-

pellate authority.

5. After considering the arguments, the Tribunal granted liberty to approach the second appellate authority. However, the Tribunal also held that the disability was neither attributable to nor aggravated by service, and that the appellant was not entitled to or eligible for the disability element of pen- sion, which deprived the right of the petitioner to challenge the order of the first appellate authority before the second appellate authority. Consequently, the second appellate authority, by the order in Exhibit P4, rejected the claim, mainly based on para- graph 12 of the Tribunal's findings. Therefore, the petitioner has prayed for the setting aside of both orders and for the grant of disability pension.

6. On the other hand, the learned Standing Counsel for the respondents seriously objected to the petition and argued on the merits of the case. After hearing the arguments and pe- rusal of the records, especially the order passed by the Tribunal at paragraphs 11 and 12, it appears that the findings are legally contradictory. While the Tribunal granted liberty to the peti- tioner to approach the second appellate authority by filing a second appeal, it ought not to have passed the order in para- graph 12, holding that the disability suffered by the petitioner was not attributable to or aggravated by service and that he was not eligible for the disability element of pension.

7. Once the tribunal granted liberty to the petitioner to approach the second appellate authority, the question of giving finding by the tribunal on merits at para 12 of the order does not arises and the tribunal ought to have stated that any obser- vation made by them in the order should not be influenced by the appellate authority while considering the second appeal.

8. Such being the case, once a finding has been given on merits the question of remanding the matter back for fresh consideration does not arises. Therefore, we are of the view that the order of the Tribunal, giving a finding at paragraph 12, as the disability suffered by the petitioner is not attributable to or aggravated by service and that he is not entitled to or eligible for the disability element of pension, deserves to be set aside.

9. Apart from that, based on paragraph 1